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Appellate
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October 17, 2024
Ex-Defender Returns To 4th Circ. With Sex Bias Case
A former North Carolina public defender appealed her bias case against the judiciary to the Fourth Circuit for a second time after a North Carolina federal judge refused to reconsider his ruling that she did not provide adequate notice to her ex-employer before filing suit.
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October 17, 2024
Justices Told Woman Can't Dispute Levy For Paid-Off Tax
A Third Circuit decision allowing a woman to challenge her tax liabilities in a property-seizure proceeding should be overturned, the Internal Revenue Service told the U.S. Supreme Court, saying her case became moot after the agency withheld her tax refunds to pay off her debt.
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October 17, 2024
5th Circ. Tosses Policyholder's Hurricane Coverage Suit
The Fifth Circuit affirmed the dismissal of a National Flood Insurance Program policyholder's suit seeking coverage for at least $100,000 in hurricane damage to a Mississippi beachfront property, saying it was time-barred and failed to allege any extracontractual duties.
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October 17, 2024
States, Industry Urge DC Circ. To Scrap Truck GHG Rule
Dozens of states and industry groups are imploring the D.C. Circuit to pull the plug on a U.S. Environmental Protection Agency rule setting greenhouse gas emission standards for heavy-duty vehicles, arguing it mandates a transition to electric vehicles that the agency has no authority to push.
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October 17, 2024
House Resolution Introduced To Laud Hispanics In Legal Field
A Florida representative in the U.S. Congress earlier this week introduced a resolution to designate Oct. 15, 2024, as a day to "honor the diaspora of Hispanic culture, and the representation of Hispanics in the legal profession and the judiciary."
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October 16, 2024
$3.6M Ruling Against Merchant Cash Advance Co. Reversed
An Ohio appellate court on Wednesday reversed a trial court's ruling allowing First Financial Bank to recover roughly $3.6 million from a merchant cash advance company, ruling — in a matter of first impression — that under Ohio law, a transferee of funds from a deposit account is protected from conversion claims unless collusion is involved.
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October 16, 2024
Cos. Slam Spain's Bid For DC Circ. Redo Over $395M Suits
Three investment companies have opposed Spain's request for a rehearing in the D.C. Circuit over the appeals court's ruling that district courts have jurisdiction to enforce about $395 million in arbitral awards issued against the country after it rolled back economic incentives for renewable energy projects.
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October 16, 2024
Feds, Md. Tell 4th Circ. Beltway Lane Expansion Is Fully Vetted
Federal and Maryland state transportation officials have told the Fourth Circuit that they thoroughly vetted air pollution, traffic congestion and other environmental concerns before approving an estimated $4 billion highway expansion project outside Washington, D.C., arguing that environmental groups have no grounds to sue to block the project.
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October 16, 2024
11th Circ. Won't Nix OK Of Guatemalan Power Plant Award
The Eleventh Circuit refused Wednesday to vacate an arbitral award issued following a dispute over an ill-fated Guatemalan power plant construction project, rejecting arguments that the tribunal improperly turned a blind eye to alleged corruption underlying the project.
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October 16, 2024
9th Circ. Revives Mexican Dad's Bid To Challenge Removal
The Ninth Circuit on Wednesday affirmed an immigration judge's decision denying a Mexican citizen's cancellation of removal bid, but ruled that the Board of Immigration Appeals' application of an incorrect standard for reopening the father's removal proceedings warranted a remand.
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October 16, 2024
Justices Torn On Interpretation Of Veterans Benefits Law
U.S. Supreme Court justices questioned Wednesday whether two veterans expected more than legally required from a lower court that only granted limited review of the denial of their disability benefits claims, while challenging the government's denial in equal measure.
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October 16, 2024
Photog Tells 9th Circ. Miles Davis Tattoo Was Not Fair Use
A photographer wants the Ninth Circuit to undo a California federal jury's finding that cleared celebrity tattoo artist Kat Von D of claims she infringed a copyrighted photo of Miles Davis that he took, saying she failed to adequately show fair use.
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October 16, 2024
2nd Circ. Scrutinizes Conn. Restrictions On AR-15s
A Second Circuit panel put the phrase "dangerous and unusual" under a microscope Wednesday as three judges considered dual challenges to Connecticut's post-Sandy Hook bans on assault rifles and large-capacity magazines, working to parse out whether the state's restrictions are allowed under U.S. Supreme Court precedent.
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October 16, 2024
Ex-Davis Polk Atty Drops Appeal Of Bias Verdict Loss
A former Davis Polk & Wardwell LLP associate on Tuesday dropped his appeal of a jury verdict clearing the firm and two lawyers of liability in a suit alleging he was fired in retaliation for airing concerns about racial bias and diversity.
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October 16, 2024
11th Circ. Says No Claim For Taking Until Permit Is Denied
The Eleventh Circuit ruled Wednesday that Fane Lozman — houseboat owner, activist and thorn in the side of the Riviera Beach, Florida, city government — cannot yet bring his claims for a regulatory taking of his property against the city because he has not applied for a permit or zoning variance.
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October 16, 2024
En Banc DC Circ. Will Revisit Campaign Finance Appeal
The full D.C. Circuit will revisit an appeal implicating the court's authority to review the Federal Election Commission's decisions on campaign finance complaints when those decisions rest on commissioners' so-called prosecutorial discretion.
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October 16, 2024
Banks Ditch Exchange's Boycott Conspiracy Suit At 2nd Circ.
The Second Circuit on Wednesday rejected a small trading exchange's effort to revive its claims that several major banks conspired to shut it out of the credit default swap market, saying the exchange failed to plausibly allege that the banks' conduct was the result of an unlawful agreement or conspiracy.
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October 16, 2024
5th Circ. Pauses Block Of Texas Election Law
The Fifth Circuit on Tuesday pressed pause on a San Antonio judge's order blocking part of a controversial Texas election law, writing that a change in law less than three weeks before voters will cast their ballots will cause undue confusion during the election.
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October 16, 2024
Teacher's Defamation Suit Can Proceed, NJ Court Says
A New Jersey teacher's claim that an Olympic fencer defamed her in social media posts about an incident in class involving a student's hijab can move forward, a state appellate court ruled Tuesday, finding the teacher adequately detailed facts that could constitute actual malice.
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October 16, 2024
Monsanto's Appellate Bid To Stop Seattle PCB Trial Flops
A Washington appellate commissioner won't overrule a lower court's decision to forge ahead with a pending Monsanto PCB poisoning trial, rejecting the company's request to pause until the state Supreme Court decides a similar case, concluding that she would be improperly "substituting" her judgment for the trial court's by pausing the case.
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October 16, 2024
NC Panel Won't Reignite Duke Energy Case Over House Fire
A split panel of the North Carolina Court of Appeals declined to revive a liability suit brought against Duke Energy Corp. and a contractor it hired to install new meters at its customers' homes after one of those contractors allegedly caused a bed to catch fire leading to $130,000 in damage.
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October 16, 2024
Mich. Panel Sinks Inventor's Atty Malpractice Appeal
A Michigan appellate panel has held that the inventor of a swim training device did not prove he would have built a successful custom swim paddle business had his attorney secured him a patent, affirming the dismissal of a legal malpractice suit against the inventor's patent attorney and firm.
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October 16, 2024
Justices Question EPA's Authority For 'Vague' SF Water Permit
The U.S. Supreme Court during oral arguments on Wednesday appeared genuinely torn about what to make of San Francisco's challenge to a Clean Water Act permit issued by the U.S. Environmental Protection Agency, which the city argues is impermissibly vague and difficult to comply with.
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October 16, 2024
Justices Won't Review Tax Scam Co-Conspirator's Sentence
The U.S. Supreme Court declined to review the more than eight-year prison sentence for one of the men who conspired with a Canfield, Ohio defense attorney to perpetrate a tax refund scam that defrauded the U.S. Internal Revenue Service out of $1.3 million.
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October 16, 2024
Fraud Probe Spoils Crop Insurance Case, 6th Circ. Rules
A Sixth Circuit panel on Tuesday affirmed dismissal of two Michigan farmers' claims against the federal government and a private crop insurer over claims of loss that have been stuck in limbo during a crop-insurance fraud investigation.
Expert Analysis
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7th Circ. Motorola Ruling Raises Stakes Of DTSA Litigation
The Seventh Circuit’s recent ruling in Motorola v. Hytera gives plaintiffs a powerful tool to recover damages, greatly increasing the incentive to bring Defend Trade Secrets Act claims against defendants with large global sales because those sales could generate large settlements, say attorneys at MoFo.
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Series
After Chevron: Bid Protest Litigation Will Hold Steady For Now
Though the substantive holding of Loper Bright is unlikely to affect bid protests because questions of statutory interpretation are rare, the spirit of the U.S. Supreme Court's decision may signal a general trend away from agency deference even on the complex technical issues that often arise, say Kayleigh Scalzo and Andrew Guy at Covington.
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Challenging Prosecutors' Use Of Defendants' Jail Phone Calls
Although it’s an uphill battle under current case law, counsel for pretrial detainees may be able to challenge prosecutors’ use of jail-recorded phone calls between the defendant and their attorney by taking certain advance measures, say Jim McLoughlin and Fielding Huseth at Moore & Van Allen.
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How NJ Worker Status Ruling Benefits Real Estate Industry
In Kennedy v. Weichert, the New Jersey Supreme Court recently said a real estate agent’s employment contract would supersede the usual ABC test analysis to determine his classification as an independent contractor, preserving operational flexibility for the industry — and potentially others, say Jason Finkelstein and Dalila Haden at Cole Schotz.
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3 Policyholder Tips After Calif. Ruling Denying D&O Coverage
A California decision from June, Practice Fusion v. Freedom Specialty Insurance, denying a company's claim seeking reimbursement under a directors and officers insurance policy for its settlement with the Justice Department, highlights the importance of coordinating coverage for all operational risks and the danger of broad exclusionary policy language, says Geoffrey Fehling at Hunton.
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Opinion
Now More Than Ever, Lawyers Must Exhibit Professionalism
As society becomes increasingly fractured and workplace incivility is on the rise, attorneys must champion professionalism and lead by example, demonstrating how lawyers can respectfully disagree without being disagreeable, says Edward Casmere at Norton Rose.
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Opinion
High Court Made Profound Mistake In Tossing Purdue Deal
The U.S. Supreme Court's recent decision to throw out Purdue Pharma's Chapter 11 plan jeopardizes a multistate agreement that would provide approximately $7 billion in much-needed relief to help fight the opioid epidemic, with states now likely doomed to spend years chasing individual defendants across the globe, says Swain Wood at Morningstar.
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Series
After Chevron: Piercing FEMA Authority Is Not Insurmountable
While the Federal Emergency Management Agency's discretionary authority continues to provide significant protection from claims under the Administrative Procedure Act, Loper Bright is a blow to the argument that Congress gave FEMA unfettered discretion to administer its own programs, says Wendy Huff Ellard at Baker Donelson.
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What Happens After Hawaii Kids' Historic Climate Deal
Implications of the Hawaii Department of Transportation's first-of-its-kind settlement with youth plaintiffs over constitutional climate claims may be limited, but it could incite similar claims, says J. Michael Showalter and Robert Middleton at ArentFox Schiff.
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Series
Serving In The National Guard Makes Me A Better Lawyer
My ongoing military experience as a judge advocate general in the National Guard has shaped me as a person and a lawyer, teaching me the importance of embracing confidence, balance and teamwork in both my Army and civilian roles, says Danielle Aymond at Baker Donelson.
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Big Business May Come To Rue The Post-Administrative State
Many have framed the U.S. Supreme Court’s recent decisions overturning Chevron deference and extending the window to challenge regulations as big wins for big business, but sand in the gears of agency rulemaking may be a double-edged sword, creating prolonged uncertainty that impedes businesses’ ability to plan for the future, says Todd Baker at Columbia University.
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Differences In Enforcing Oral Settlements In NJ And Pa.
New Jersey mediations should incorporate new best practices for settlement agreements after a recent state appellate court ruling eliminated the enforceability of oral-only settlements, setting New Jersey at odds with Pennsylvania’s established willingness to enforce unwritten agreements that were clearly intended to be binding, say Thomas Wilkinson and Thomas DePaola at Cozen O'Connor.
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Reading Between The Lines Of Justices' Moore Ruling
The U.S. Supreme Court's recent Moore v. U.S. decision, that the Internal Revenue Code Section 965 did not violate the 16th Amendment, was narrowly tailored to minimally disrupt existing tax regimes, but the justices' various opinions leave the door open to future tax challenges and provide clues for what the battles may look like, say Caroline Ngo and Le Chen at McDermott.
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Series
After Chevron: A Sea Change For Maritime Sector
The shipping industry has often looked to the courts for key agency decisions affecting maritime interests, but after the U.S. Supreme Court's Loper Bright ruling, stakeholders may revisit important industry questions and coordinate to bring appropriate challenges and shape rulemaking, say attorneys at Holland & Knight.
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Opinion
Post-Chevron, Good Riddance To The Sentencing Guidelines
The U.S. Supreme Court’s overturning of the Chevron doctrine may signal the end of the U.S. sentencing guidelines, which is good news given that they have accomplished the opposite of Congress’ original intent to bring certainty, proportionality and uniformity to sentencing, say attorneys Mark Allenbaugh, Doug Passon and Alan Ellis.